Jury Service as a Political Right

• Author: Vikram D. Amar
• Pages: 1514-1515

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In his article in this encyclopedia on JURY DISCRIMINATION, James Boyd White identified a, if not the, central question as being "[w]hat exclusions, beyond racial ones, are improper?" The dozen or so cases the Supreme Court decided during the 1990s have served to heighten the need for a CONSTITUTIONAL THEORY to identify the groups whose exclusion from or underrepresentation on juries ought to be troubling. In the 1970s the Court invoked the Sixth Amendment, which guarantees to criminal defendants the right to a TRIAL BY JURY. This amendment, however, offers an explanation that is incomplete in at least two respects. First, few would doubt that jury discrimination raises constitutional problems outside the criminal setting. Second, and more basic, the Sixth Amendment tells us only about some circumstances in which a jury must be provided, not about how juries must be constituted. That is, there is nothing in the text or history of the Sixth Amendment that tells when exclusion of certain groups or individuals renders a body less than a "jury."

An approach that would focus on the DUE PROCESS OF LAW rights of litigants to a fairly selected jury would also be plagued with problems. If a jury that, because of intentional official action is all white, was held to deprive a black litigant of her due process rights, then why shouldn't the same be said for a jury that turns out to be all white not because of official design but rather because of random chance? Moreover, a due process approach that stressed the possibility that jurors of different races will treat litigants differently would not provide a basis for attacking exclusion of black jurors when the litigants are white. This due process approach can create unfortunate dilemmas when black jurors are excluded in a case where the defendant is white but the victim is black.

For these reasons, the Court in recent jury exclusion cases beginning with BATSON V. KENTUCKY (1986) and continuing with cases such as Powers v. Ohio (1991), Edmonson v. Leesville Concrete Co. (1991), and J. E. B. v. Alabama (1994) has focused less on the rights of the litigants, and more on the rights of excluded jurors?in particular, their rights to EQUAL PROTECTION OF THE LAWS under the FOURTEENTH AMENDMENT. The newfound focus on the rights of the would-be jurors is welcome, but the equal protection analysis employed by the Court thus far

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is at best incomplete and at worst...